The Queen (on the application of Craig Garrett) v Legal Aid Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1258 (Admin) |
| Docket Number | Case Nos: CO/4803/2020 & CO/218/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1258 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case Nos: CO/4803/2020 & CO/218/2021
and
The Claimant in person
Malcolm Birdling (instructed by Legal Aid Agency) for the LAA
Rory Mulchrone (instructed by Capsticks LLP) for the SRA
The SDT did not appear and was not represented
Hearing date: 24.5.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: a non-confidential version of this judgment was released on 24 th May 2022, with typos to be incorporated in the handed-down version.
Introduction
This is a case which arises out of an order made by the SRA pursuant to section 43 of the Solicitors Act 1974, which I will call a “Control Order”. For the purposes of section 43, the SRA acts for the Law Society (“the Society”) and “the Tribunal” is the SDT. Section 43 includes the following:
43.—Control of solicitors' employees and consultants .
(1) Where a person who is or was involved in a legal practice but is not a solicitor — (a) has been convicted of a criminal offence which is such that in the opinion of the Society it would be undesirable for the person to be involved in a legal practice in one or more of the ways mentioned in subsection (1A), or (b) has, in the opinion of the Society, occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the Society it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in subsection (1A), the Society may either make, or make an application to the Tribunal for it to make, an order under subsection (2) with respect to that person .
…
(2) An order made by the Society or the Tribunal under this subsection is an order which states one or more of the following — (a) that as from the specified date — (i) no solicitor shall employ or remunerate, in connection with his practice as a solicitor, the person with respect to whom the order is made, (ii) no employee of a solicitor shall employ or remunerate, in connection with the solicitor's practice, the person with respect to whom the order is made, (iii) no recognised body shall employ or remunerate that person, and (iv) no manager or employee of a recognised body shall employ or remunerate that person in connection with the business of that body, except in accordance with a Society permission; (b) that as from the specified date no recognised body or manager or employee of such a body shall, except in accordance with a Society permission, permit the person with respect to whom the order is made to be a manager of the body; (c) that as from the specified date no recognised body or manager or employee of such a body shall, except in accordance with a Society permission, permit the person with respect to whom the order is made to have an interest in the body .
(2A) The Society may make regulations prescribing charges to be paid to the Society by persons who are the subject of an investigation by the Society as to whether there are grounds for the Society— (a) to make an order under subsection (2), or (b) to make an application to the Tribunal for it to make such an order. (2B) Regulations under subsection (2A) may— (a) make different provision for different cases or purposes; (b) provide for the whole or part of a charge payable under the regulations to be repaid in such circumstances as may be prescribed by the regulations. (2C) Any charge which a person is required to pay under regulations under subsection (2A) is recoverable by the Society as a debt due to the Society from the person .
(3) Where an order has been made under subsection (2) with respect to a person by the Society or the Tribunal— (a) that person or the Society may make an application to the Tribunal for it to be reviewed, and (b) whichever of the Society and the Tribunal made it may at any time revoke it .
(3A) On the review of an order under subsection (3) the Tribunal may order— (a) the quashing of the order; (b) the variation of the order; or (c) the confirmation of the order; and where in the opinion of the Tribunal no prima facie case for quashing or varying the order is shown, the Tribunal may order its confirmation without hearing the applicant .
(4) …
(5) Orders made under subsection (2) by the Society, or made, varied or confirmed under this section by the Tribunal and filed with the Society may be inspected during office hours without payment .
…
There are before me two renewed applications for permission for judicial review, permission having been refused by Steyn J on 14 and 15 September 2021. The renewed applications (dated 15 September 2021) were listed on the same day before the same Judge and it has made sense to deal with them at the same hearing 1 and in a single judgment. The Claimant applied, unopposed, for the renewal hearings to be “hybrid” hearings involving the use of “CVP” so that he could attend remotely from his address in Newport. I granted those applications. I explained that I was doing so based on the particular circumstances, not intending to set a precedent, because – in light of the Claimant's medical conditions, given the urgency (since the applications had not been dealt with more promptly), and in circumstances where the Defendants were not opposing the applications – I was satisfied that it was reasonable and appropriate on this occasion for the Claimant to participate in the hearing remotely. That is what he did. The Court was informed on 23 May 2022 that he had been taken into hospital. In the event, he was able to appear at the hearing (24 May 2022) by CVP. He told me that he was not requesting an adjournment and was content to go ahead, which we did.
The background is this. On 28 March 2014 the Claimant was dismissed from his employment with a firm of solicitors called Louise Stephens and Co (“the Firm”). The Firm's owner and proprietor (Louise Stephens) reported the Claimant to the SRA on 1 April 2014 and later provided a witness statement (5 June 2014). There was a police investigation, in which the Claimant was represented by criminal solicitors. Subsequent SRA steps included a report (22 September 2015), communications from the criminal solicitors (20 November 2015 and 11 March 2016) and a supervision report (14 March 2016). An SRA Adjudicator decided (12 April 2016) to impose a Control Order (s.43(2)) on the Claimant, pursuant to the test in section 43(1)(b). The Adjudicator went on to make an order against the claimant for costs in the sum of £600. The Adjudicator's decision was published by the SRA on 23 May 2016. More than four years later, on 2 September 2020, the Claimant made an application pursuant to section 43(3) to the SDT for the Control Order to be “reviewed” (s.43(3)(a) and (3A)). The decisions which are impugned in these two claims for judicial review arose out of those background circumstances.
The Claimant makes a number of points in his claims for judicial review. But there are two key themes in his position so far as the Control Order is concerned.
i) Never justified. First, he says that the Control Order should never have been made. In particular, that is because the SRA Adjudicator – wrongly – thought that the police investigation was limited to the Firm's “client account” and did not concern the Firm's “office account”. The investigation was never restricted in that way. The Claimant was being investigated in relation to both accounts and did not respond substantively to the SRA, including in relation to the “office account”, because there was an extant criminal investigation. This is a “never justified” point. It has been present throughout.
ii) No longer justified. Secondly, he says that the Control Order cannot stand in light of his subsequent vindication in the criminal proceedings. He points to his formal certificate of acquittal on 5 May 2021, the Crown having offered no evidence. This is a “no longer justified” point. It is a point which arose from May 2021 onwards.
So far as the claim against the LAA is concerned, further key circumstances include these. The Claimant made an application for exceptional case funding (“ECF”) pursuant to the Legal Aid Sentencing and Punishment of Offenders Act 2012 section 10, read with the ECF Guidance and the legal aid Means Regulations and Merits Regulations. On 4 December 2020 a reasoned decision was made by the LAA decision-maker, confirming that ECF was refused. The ECF sought by the Claimant was so as to be represented at the SDT hearing of the application pursuant to section 43(3)(a), to quash the Control Order made by the SRA Adjudicator in April 2016. The refusal of that funding is impugned in the judicial review proceedings against the LAA ( CO/4803/2020), filed on 23 December 2020. Steyn J refused permission for judicial review on 15 September 2021 on the basis that, beyond argument, the LAA's decision of 4 December 2020 was lawful and reasonable in assessing the prospects of success as poor (less than 45%). That meant the judicial review claim could not succeed, even if the LAA had misappreciated whether Article 6 ECHR was engaged. Steyn J made a costs order: that the Claimant pay the LAA's costs of its acknowledgement of service assessed in the modest sum of £300 in circumstances...
To continue reading
Request your trial